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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MOHAMED SITA BERETE :
:
Appellant : No. 1609 MDA 2016
Appeal from the PCRA Order September 15, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000933-2011
BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 03, 2017
Appellant, Mohamed Sita Berete, appeals pro se from the order
entered in the Berks County Court of Common Pleas, which denied his first
petition brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We
affirm.
This Court previously set forth the relevant facts and procedural
history of this case in its memorandum affirming the judgment of sentence
as follows:
[A]t approximately 10:30 p.m. on February 18, 2011,
Officer Christopher A. Cortazzo of the Reading Police
Department was on duty, patrolling the area of the 200
block of North Ninth Street, in a marked police car. Officer
Cortazzo observed [Appellant’s vehicle] driving along Ninth
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1 42 Pa.C.S.A. §§ 9541-9546.
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Street that had tinted front [driver] and passenger-side
windows. Officer Cortazzo explained that there was a
significant amount of vehicle traffic because a local hockey
game had recently ended. While driving in the left lane
along Ninth Street, with a consistent line of vehicles
travelling in the right lane, Officer Cortazzo passed
[Appellant’s vehicle]. According to Officer Cortazzo:
[Appellant’s] vehicle appeared to be going very slow
so [Officer Cortazzo] attempted to slow down so the
vehicle could pass [the officer’s car] and [Officer
Cortazzo] could get behind it and run the plate. As
[Officer Cortazzo] slowed down, it appeared
[Appellant’s] vehicle was going slower till [Officer
Cortazzo] almost had to stop to permit [Appellant’s
vehicle] to go past [Officer Cortazzo] so [he] could
maneuver behind it, [and] run the plate...And once
[Officer Cortazzo] did that, to ensure it wasn’t
stolen...[he] activated [his] overheard emergency
lighting...[and Appellant’s vehicle stopped in the left
lane of traffic.]
As Officer Cortazzo exited his vehicle and approached
[Appellant’s] vehicle, [Officer Cortazzo] was able to
observe [Appellant] through the rear window lean and
reach toward the center console area of the vehicle.
Officer Cortazzo asked [Appellant] for his license,
registration, and insurance. According to Officer Cortazzo,
[Appellant] “fumbled around” and then handed [over] his
license. Upon [being asked] again for the insurance and
registration [Appellant] handed Officer Cortazzo a “clump
of paperwork from the glove compartment.” Officer
Cortazzo had to “fish through that paperwork to find the
registration and insurance” and “while [he] was doing that,
[Appellant] again turned his body to the right blocking
what [Officer Cortazzo] could see with his back and doing
something on his right side.” Officer Cortazzo had to
caution [Appellant] to “stop moving around,” “turn forward
and pay attention.” When questioned by Officer Cortazzo
as to whether the vehicle was [Appellant’s], [Appellant]
responded that the vehicle [belonged] to “Manny.” Officer
Cortazzo reported that the vehicle was registered to an
Edwin Acevedo. During their conversation about
ownership of the vehicle, [Appellant] again turned to his
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right side after which he was again instructed to “turn
around and stop moving” after which Officer Cortazzo
asked [Appellant] if “there were any weapons in the car” to
which [Appellant] replied “no.”
Officer Cortazzo then requested that [Appellant] step out
of the vehicle as it was [Officer Cortazzo’s] intent to “pat
[Appellant] down for weapons because of his movements.”
As [Appellant] exited the vehicle, Officer Cortazzo
instructed [Appellant] to turn around from [Officer
Cortazzo] and face [the] vehicle. [Appellant] was not
responding; rather, he was “shifting his weight from right
to left and looking around.” Unsure of whether [Appellant]
was “trying to retrieve or hide a weapon or contraband,”
on [Officer Cortazzo’s] third request to [Appellant] to face
his vehicle, Officer Cortazzo “reached out to turn
[Appellant]; and that’s when [Appellant] took both hands
and punched [Officer Cortazzo] in the chest, knocking him
backwards.” Officer Cortazzo fell back approximately five
feet and [Appellant] turned and fled, running “south
against the flow of traffic, in the lane of traffic.”
When Officer Cortazzo regained his balance, he chased
after [Appellant] on foot, yelling for him to stop.
[Appellant] continued to run, forcing Officer Cortazzo to
deploy his Taser after which [Appellant] immediately
dropped to the ground. As [Appellant] fell to the ground,
Officer Cortazzo “heard a metal object hit the ground.”
Officer Cortazzo then saw a small semiautomatic pistol
lying next to [Appellant]. [Appellant] repeatedly stated,
“it’s not mine.” A search incident to arrest of [Appellant’s]
vehicle revealed the presence of narcotics.
A serial number scan of the firearm recovered revealed
that the owner was George Borgoon, a local store owner
who had never met [Appellant] before. When contacted
by police, Borgoon stated that he had not seen the firearm
for two years, although he never knew it was missing. He
believed that the firearm was secured under his son’s desk
in the back of the store. According to Borgoon’s testimony
at the time of trial, he does not know [Appellant], and
[Borgoon] never gave [Appellant] permission to have the
gun.
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Following a jury trial, [Appellant] was convicted of firearms
not to be carried without a license, escape, receiving stolen
property, and possession of a controlled substance. The
trial judge also found [Appellant] guilty of windshield
obstructions and wipers, a summary offense. … …[On]
March 20, 2012, [Appellant] was sentenced to an
aggregate term of 62 to 168 months’ imprisonment.
[Appellant] timely filed a post-sentence motion, which the
trial court denied. …
Commonwealth v. Berete, No. 877 MDA 2012, unpublished memorandum
at 1-4 (Pa.Super. filed March 5, 2013). This Court affirmed the judgment of
sentence on March 5, 2013, and on September 17, 2013, our Supreme Court
denied Appellant’s petition for allowance of appeal. See Commonwealth v.
Berete, 69 A.3d 1283 (Pa.Super. 2013), appeal denied, 621 Pa. 669, 74
A.3d 1029 (2013).
Appellant timely filed his first pro se PCRA petition on May 8, 2014.
The PCRA court appointed counsel on May 15, 2014, who filed a
Turner/Finley2 no-merit letter on October 2, 2015, along with a motion to
withdraw. Appellant filed on October 30, 2015, a pro se notice of intent to
respond to counsel’s Turner/Finley letter. On December 3, 2015,
Appellant filed a pro se amended PCRA petition. On the following day,
Appellant filed a pro se response to counsel’s Turner/Finley letter, claiming
counsel failed to investigate the issues in Appellant’s PCRA petition. The
PCRA court granted counsel’s motion to withdraw on December 11, 2015,
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2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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and appointed new PCRA counsel on the same day.
On April 25, 2016, the PCRA court held an evidentiary hearing. At the
hearing, both officers confirmed their testimony was consistent and at no
time did they ever state that their testimony in the criminal trial was false.
The PCRA court also determined the City of Reading did not “terminate”
Officer Cortazzo.
Appellant’s second PCRA counsel filed a Turner/Finley no-merit letter
on August 22, 2016, and a motion to withdraw on August 26, 2016, which
the PCRA court granted that same day. Appellant filed a pro se response to
the second Turner/Finley letter on September 6, 2016, claiming PCRA
counsel failed to investigate (a) the inconsistent testimony of Officers
Cortazzo and Menges and (b) Officer Cortazzo’s termination. The PCRA
court denied PCRA relief on September 16, 2016. On September 28, 2016,
Appellant timely filed a pro se notice of appeal. The PCRA court ordered
Appellant on October 4, 2016, to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925, and Appellant timely
complied.
Appellant presents the following issues verbatim for our review:
(1) WHETHER THE [PCRA] COURT ABUSED ITS
DISCRETION IN DENYING [APPELLANT’S] PCRA PETITION
WITHOUT RECKONING WITH THE MERIT AND LEGITIMACY
OF THE ISSUES RAISED WHERE THE ARRESTING OFFICER
CHRISTOPHER A. CORTAZZO WAS TERMINATED FROM
THE POLICE DEPARTMENT BY MAYOR VAUGHN D.
SPENCER OF THE CITY OF READING FOR SEVERAL POLICE
MISCONDUCTS AND VIOLATION OF THE DEPARTMENT
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RULES AND ETHICS AFTER FAILING A “FIT FOR DUTY
EXAM,” AND WHERE BOTH OFFICERS CORTAZZO AND
[MENGES] ADMITTED TO HAVING GIVEN RESPECTIVELY
INCONSISTENT TESTIMONY BECAUSE OF THE LAPSE OF
TIME BETWEEN THE DAY OF THE INCIDENT AND THE DAY
OF THE TRIAL AND INACCURATE TESTIMONY OF HIS
FAILURE TO CHECK THE POLICE REPORT BEFORE GETTING
ON THE STAND TO TESTIFY[?]
(2) WHETHER [APPELLANT] WAS DENIED HIS RIGHT TO A
FAIR AND IMPARTIAL [JURY TRIAL] WHERE PROSPECTIVE
JUROR NO. 16 AND HER HUSBAND WERE FRIENDS AND
NEIGHBORS WITH THE PROSECUTING ATTORNEY WHO
ALSO STATED THAT SHE COULD NOT BE FAIR[,] AND HAD
QUESTIONS OF GUILT OR INNOCENCE ON HER BEFORE
AND DURING THE TRIAL[?]
(3) WHETHER THE PCRA COUNSELS’ [TURNER/FINLEY]
LETTERS WERE BOTH BOGUS AND IN CONTRADICTION
WITH COMMONWEALTH V. FINLEY AND
COMMONWEALTH V. TURNER, WHERE COUNSELS
FAILED [NOT ONLY] TO INVESTIGATE [THE] WITHIN
MATTER BUT ALSO FAILED TO CONSIDER THE MERIT OF
THE ISSUES RAISED IN [APPELLANT’S] PCRA PETITION[?]
THUS, THESE ISSUES WERE SUPPORTED BY THE RECORD
AND FILES KEPT BY THE OFFICE OF THE CLERK OF
COURTS OF BERKS COUNTY, PENNSYLVANIA.
(4) WHETHER THE ARRESTING OFFICER CORTAZZO
VIOLATED THE COURT SEQUESTRATION ORDER BY
TALKING TO AND DISCUSSING THE CASE WITH THE
PROSECUTING ATTORNEY MR. BOYER AND OTHER
OFFICERS/WITNESSES YET TO TESTIFY WHILE HE WAS
ORDERED BY THE COURT NOT TO [DO] SO[?]
CONSEQUENTLY, THE DENIAL OF [APPELLANT’S] MOTION
FOR MISTRIAL CONCERNING THIS VIOLATION OF COURT
ORDER WAS ITSELF A VIOLATION OF [APPELLANT’S]
RIGHT TO A FAIR AND IMPARTIAL TRIAL. AND WHETHER
THE REFUSAL TO [DISCLOSE] THE VIDEO RECORD FROM
THE POLICE DASHBOARD CAMERA AS REQUESTED BY
[APPELLANT] WAS A VIOLATION OF BRADY LAW [AND]
THE AFOREMENTIONED VIOLATIONS WERE NOT
HARMLESS[?]
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(Appellant’s Brief at 3).3
As a preliminary matter, to be eligible for relief under the PCRA, the
petitioner must plead and prove his conviction resulted from one or more of
the grounds set forth in 42 Pa.C.S.A. § 9543(a)(2)(i-viii). Commonwealth
v. Zook, 585 Pa. 11, 887 A.2d 1218 (2005). “Generally, an appellant may
not raise allegations of error in an appeal from the denial of PCRA relief as if
he were presenting the claims on direct appeal.” Commonwealth v. Price,
876 A.2d 988, 995 (Pa.Super. 2005), appeal denied, 587 Pa. 706, 897 A.2d
1184 (2006), cert. denied, 549 U.S. 902, 127 S.Ct. 224, 166 L.Ed.2d 179
(2006); Commonwealth v. Bell, 706 A.2d 855 (Pa.Super. 1998), appeal
denied, 557 Pa. 624, 732 A.2d 611 (1998).
Here, Appellant’s second and fourth issues are waived for purposes of
review, because he offers them as if he were presenting the claims on direct
appeal. See Price, supra. See also 42 Pa.C.S.A. § 9544(b) (stating issue
is waived if petitioner failed to raise it and it could have been raised before
trial, at trial, during unitary review, or in prior proceeding under PCRA).
Therefore, we will give issues two and four no further attention.
In his remaining issues, Appellant argues his discovery of a newspaper
article dated December 19, 2014, alerted him that the City of Reading had
fired Officer Cortazzo for unbecoming conduct. Appellant maintains this
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3 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
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“after-discovered evidence,” along with Officers Cortazzo’s and Menges’
“admissions” of inconsistent testimony, would result in a different verdict
because the officers’ testimony was the only information used at trial to
establish Appellant’s guilt. Appellant contends he could use this new
evidence beyond impeachment purposes to show the officers had falsified
reports and violated ethical rules. Appellant asserts both PCRA counsel
rendered ineffective assistance and their respective Turner/Finley letters
reveal they did not properly investigate these matters. Appellant claims he
asked his first PCRA counsel to raise the issue of Officer Cortazzo’s
termination, but she refused and withdrew; and Appellant’s second PCRA
counsel also withdrew, even though he knew about the “after-discovered
evidence.” Appellant complains he was prejudiced by PCRA counsel’s
ineffective assistance when they ignored his “after-discovered evidence,”
which could have resulted in a different outcome.4 Appellant concludes he is
entitled to PCRA relief in the form of a new trial. We disagree.
Our standard of review for the denial of a PCRA petition is limited to
examining whether the record supports the court’s determination and
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4 Where PCRA counsel has sought to withdraw from representation, the
petitioner must preserve any challenge to PCRA counsel’s ineffectiveness in
a response to counsel’s no-merit letter or, if applicable, the court’s Rule 907
notice. See Commonwealth v. Pitts, 603 Pa. 1, 9 n.4, 981 A.2d 875, 880
n.4 (2009). In the present case, Appellant preserved these ineffectiveness
of PCRA counsel challenges in his responses to the respective Turner/Finley
letters.
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whether the court’s decision is free from legal error. Commonwealth v.
Ford, 947 A.2d 1251, 1252 (Pa.Super. 2008), appeal denied, 598 Pa. 779,
959 A.2d 319 (2008). This Court grants great deference to the findings of
the PCRA court if the certified record contains any support for those findings.
Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007), appeal
denied, 593 Pa. 754, 932 A.2d 74 (2007). Credibility resolutions are within
the province of the PCRA court when a hearing is held on the petition.
Commonwealth v. Rathfon, 899 A.2d 365 (Pa.Super. 2006). If the record
supports a PCRA court’s credibility decision, it is binding on the appellate
court. Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297 (2011).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). Under
the traditional analysis, to prevail on a claim of ineffective assistance of
counsel, a petitioner bears the burden to prove his claims by a
preponderance of the evidence. Commonwealth v. Turetsky, 925 A.2d
876 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007).
The petitioner must demonstrate: (1) the underlying claim is of arguable
merit; (2) counsel had no reasonable strategic basis for the asserted action
or inaction; and (3) but for the errors and omissions of counsel, there is a
reasonable probability that the outcome of the proceedings would have been
different. Id. See also Commonwealth v. Kimball, 555 Pa. 299, 724
A.2d 326 (1999). “A reasonable probability is a probability that is sufficient
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to undermine confidence in the outcome of the proceeding.”
Commonwealth v. Spotz, 624 Pa. 4, 34, 84 A.3d 294, 312 (2014)
(quoting Commonwealth v. Ali, 608 Pa. 71, 86-87, 10 A.3d 282, 291
(2010)). “Where it is clear that a petitioner has failed to meet any of the
three, distinct prongs of the…test, the claim may be disposed of on that
basis alone, without a determination of whether the other two prongs have
been met.” Commonwealth v. Steele, 599 Pa. 341, 360, 961 A.2d 786,
797 (2008).
“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit….” Commonwealth
v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot
be found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).
Once this threshold is met we apply the “reasonable basis”
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.
Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).
Prejudice is established when [an appellant] demonstrates
that counsel’s chosen course of action had an adverse
effect on the outcome of the proceedings. The [appellant]
must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
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confidence in the outcome. In [Kimball, supra], we held
that a criminal [appellant] alleging prejudice must show
that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883
(2002) (internal citations and quotation marks omitted).
Further, “to succeed on an allegation of…counsel’s ineffectiveness…a
post-conviction petitioner must, at a minimum, present argumentation
relative to each layer of ineffective assistance, on all three prongs of the
ineffectiveness standard….” Commonwealth v. D’Amato, 579 Pa. 490,
500, 856 A.2d 806, 812 (2004) (internal citations omitted). “[A]n
undeveloped argument, which fails to meaningfully discuss and apply the
standard governing the review of ineffectiveness claims, simply does not
satisfy [the petitioner’s] burden of establishing that he is entitled to any
relief.” Commonwealth v. Bracey, 568 Pa. 264, 273 n.4, 795 A.2d 935,
940 n.4 (2001).
Instantly, Appellant’s argument that PCRA counsel were ineffective for
failure to pursue further Appellant’s “after-discovered evidence” claim does
not meet the standard governing ineffectiveness claims. Here, Appellant
devoted his entire argument to how the purported “after-discovered
evidence” would satisfy the first prong of the Pierce test. Appellant then
simply concluded PCRA counsel rendered ineffective assistance, which
prejudiced Appellant. Appellant failed to present argument as to how the
second and third prongs of the Pierce test were also met with respect to
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PCRA counsel. See D’Amato, supra; Bracey, supra. See also
Commonwealth v. Jones, 571 Pa. 112, 128, 811 A.2d 994, 1003 (2002)
(stating claims of ineffective assistance of counsel are not self-proving).
Thus, Appellant did not establish he is entitled to relief on the grounds
asserted.
Moreover, regarding Appellant’s underlying claims of “after-discovered
evidence,” the PCRA court reasoned as follows:
In the case sub judice, [Appellant] relies on the ground
that there was new evidence showing that there was false
testimony of two police officers at [Appellant’s] trial. Both
officers testified under questioning by [Appellant’s] counsel
at the PCRA hearing that they had never stated at a civil
trial that their testimony in the criminal trial was false.
Therefore, this issue is without merit because [Appellant]
has not proved that the officers lied at his criminal hearing.
Furthermore, there is no evidence that Officer Cortazzo
was terminated by the Reading Police Department instead
of retiring from the force. … [Appellant’s] claim that his
past PCRA counsel should have brought to the court’s
attention that Officer Cortazzo was terminated has no
arguable merit. [Appellant] has no proof as to this
allegation. Therefore, he does not meet the first prong of
the test, and any claim of ineffectiveness of counsel fails.
Even assuming that Officer Cortazzo had been terminated,
[Appellant] cannot show how that termination impacted
[Appellant’s] case.
(PCRA Court Opinion, filed September 16, 2016, at 3-4). The record
supports the PCRA court’s credibility resolutions and its conclusion that
Appellant’s underlying claims likewise lacked arguable merit. See Rathfon,
supra; Dennis, supra. Accordingly, we affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/3/2017
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